Yeomans Work: Making Sense of Justice in the Trump Era

Senators: Avoid Softballs for Barr in Confirmation Questioning

William Barr will face the Senate Judiciary Committee next Tuesday in his quest to become attorney general for the second time. I argued previously that he is not the person for the job, based on his extreme views regarding executive power (including his role in the Iran/Contra pardons), his comments critical of the Mueller investigation, and his praise for the anti-civil rights, anti-immigrant, “tough on crime,” anti-police reform record of Jeff Sessions as attorney general.

I also expressed my view that any Trump nominee for Attorney General comes to the Senate with a strong presumption against confirmation. Through much of our history, a general presumption in favor of confirming presidential Cabinet nominees guided Senate consideration. Indeed, the view that presidents should be able to pick and put in place their top executives absent unethical conduct or extreme views was a norm that helped government function in our demanding constitutional structure. That norm has withered in recent years, and should be suspended entirely when Trump is the appointing authority. We know from too much experience that Trump shoots from the hip, disdains vetting, and is drawn toward nominees who, like him, tend to be ethically challenged and unqualified by virtue of talent and character. As a result, his administration has suffered forced departures at a historic rate. The Senate has an obligation to receive Trump nominees with skepticism and to subject them to searching scrutiny.

The need for skepticism is at its greatest for a Trump attorney general nominee. Trump does not understand or accept the role of the attorney general as an independent guardian of the rule of law. His disdain for Jeff Sessions after Sessions recused himself from the Russia investigation revealed Trump’s view that the role of his attorney general was to protect him. He viewed the attorney general as another Roy Cohn/Michael Cohen fixer who owed allegiance to the person of Donald Trump, rather than the Constitution. His bashing and obstruction of the Russia investigation has shown his disdain for the independence of law enforcement. His persistent calls for investigation of his political opponents has revealed a view of the law more suited for a banana republic than a mature democracy operating under the rule of law.

At this stage of his presidency, it is difficult to accept that Trump would nominate an attorney general he thought would investigate vigorously his many open legal vulnerabilities. He disdained the prescribed order of succession in the Department of Justice to tap Matthew Whitaker as acting attorney general. Whitaker had auditioned for his job in the Department of Justice (DOJ) through regular TV appearances criticizing Special Counsel Mueller and his investigation. He chose William Barr as Sessions’s successor after Barr published op-eds supporting Trump and – purportedly out of the blue — submitted a 19-page memorandum to the Department of Justice arguing that Mueller’s obstruction of justice investigation lacked legal grounding.

Trump selected Barr knowing that Mueller’s investigation posed an existential threat to his presidency. The Senate should assume that consideration was foremost in Trump’s mind when he selected Barr.

Barr’s confirmation grew more complicated with press reports that Deputy Attorney General Rod Rosenstein intends to leave DOJ once Barr is in place. Rosenstein has continued to supervise the Mueller investigation since Whitaker’s appointment. Rosenstein’s departure would remove from the chain of command the man who appointed Mueller and was the last relevant official Trump appointed before opposition to Mueller dominated his DOJ appointment decisions. Rosenstein’s departure would leave the investigation entirely under the supervision of Barr, whose public statements suggest he has prejudged the outcome. While some see benefit in Barr’s confirmation because it will remove Whitaker, the resulting departure of Rosenstein weakens that reasoning and buttresses the case against Barr’s confirmation.

At Barr’s hearing, senators should press him to recuse himself from any ongoing investigation of Trump. Assuming he will not do so, they need to explore the details of Barr’s selection and whether Barr and Trump or Barr and anyone in the White House have discussed Mueller’s investigation. They should explore the origins of Barr’s 19-page memo. They need to seek assurances that Mueller will be allowed to complete his work; that Barr will honor the special counsel regulations’ requirement that he report any rejection of investigative steps to Congress and that he will do so promptly; and that he will forward to Congress Mueller’s detailed findings and the underlying evidence.

Senators must examine Barr on his understanding of executive privilege, including whether he reads the Supreme Court’s decision ordering Nixon to produce the Watergate tapes as controlling precedent. It appears likely that Trump’s defense team will assert executive privilege to resist turning over to Congress accounts of conversations between Trump and his advisors. Those accounts and their fruits undoubtedly will be significant in impeachment proceedings. In addition, senators must question Barr regarding his strained view of obstruction of justice.

Finally, senators should remember the attorney general’s central role in civil rights, criminal justice, and the environment. They should push back against the Sessions legacy. For example, under Sessions, the Civil Rights Division abandoned the reform of police departments that had engaged in excessive force and racially biased policing. It failed to pursue cases on behalf of minorities denied the right to cast a meaningful ballot. It rejected race-conscious efforts to promote diversity, eschewed cases challenging employment and housing practices that had the effect of discriminating, and backed away from policies protecting LGBTQ rights. While it is sadly unrealistic to expect a Trump-appointed attorney general to pursue a vigorous civil rights agenda, the retreat should not proceed without consequence.

Senators on the Judiciary Committee must reject any notion of deference to Trump. They must question Barr vigorously regarding his views on executive power, demand that he recuse himself from Trump investigations, and urge that he reconsider the Department’s stands on civil rights, the environment, and criminal justice. Confirmation hearings can produce surprises. At the very least, they inform. Stay tuned.

Bill Yeomans is the Senior Justice Fellow for Justice at Alliance for Justice. He previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society.

The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.

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